from the say-what-now? dept

techflaws.org points us to the news that the SME Innovation Alliance, a lobbying group that supposedly represents small tech firms, is complaining that the UK needs software patents, and saying that its software industry is suffering without them. That strikes me as pretty funny, because just recently I've been hearing from a bunch of fairly innovative UK-based startups, who seem to be doing just fine.

"We need to recognise that software is a material — you can make inventions from that material," [John] Mitchell [chairman of the SME Innovation Alliance], said at the event, held to discuss the recent Hargreaves report into intellectual property law. "It's like wood, it's like paper, so why have some artificial limitation?"

Um, because a patent is the artificial limitation -- it's the artificial limitation on everyone else. Furthermore, software is nothing like wood or paper, and it's downright scary that someone who runs a group called the "Innovation Alliance" thinks that one is like the other. Finally, software is already protected by intellectual property law, it's just that it's copyright. Why would he pretend that's not the case?

"If you don't have a patent system to protect your software industry, you're not going to have a software industry. How much more evidence do you need?" he asked.

Um, a lot, because the UK does have a software industry. Apparently Mitchell just doesn't know where to look. Furthermore, plenty of countries that don't recognize software patents have a software industry. Why would he argue otherwise? Either way, I would think this seems like good evidence for why innovative companies should not want to be a part of the SME Innovation Alliance, as the organization's views seem woefully out of touch on actual innovation.

Bollocks

As a software developer working for a software company in the UK, I thank the heavens every day that we don't have software patents here. The idea that sitting down and thinking up a solution to a problem on my own my be infringing someone's "intellectual property" is crazy to me and everyone else I know in the industry. Only lawyers like software patents.

Re: Bollocks

Re: Re: Bollocks

I have written somewhere a few analogies using paper as an example which I will try to find (or "rediscover") later if someone doesn't beat me to it.

For the time being: software is information. It's the stuff you *put on* paper. It's the notes on a musical score.

Not the software information, but the computer and screen and printer and mouse and everything else are the materials, yet these are already created and are not modified in any way further when we add software to it than how our own brains are modified when we incorporate into it some information the changes are slight and at the quantum level.

Even if the information storage were not slight, the fact is that the information itself is merely represented in some convenient form. We can change the form and the structure tremendously to make the software "unrecognizable", yet it would be the same set of instructions. This is because information is an abstraction that can be represented entirely faithfully in entirely different ways (in infinite ways.. including by lining up well-trained ants that know the precise mathematical rules to calculate the computing colony's next state). The software in different forms would still be related via a mathematical isomorphism.

These materials then (traditional computer hardware of flavor X, trained ants, etc) do the same thing they were always programmed to do, which is to start at the first instruction and interpret it according to existing well-defined rules (eg, one likely instruction would be ADD two small values to produce the third in the location where one of these two values was placed). And then rinse and repeat for the next and future instructions (keeping in mind that there are some instructions which cause jumping around out of sequence based on prior calculated results or results from hardware input like mouse input).

If we have a robot that can cook dishes based on a set of instructions you give it, then we have a computer that calculates (or "cooks") the new information (by sending results to the screen or printer to display a particular color at a particular location at a particular point in time). Is creating a new complex recipe and passing it around the Internet to friends and having each person feed it to their own cook robot to experience the dish the creation of a new invention? I don't think so. Not in any sense where patents were created to address. Well, software fed to a programmable device is just this (though likely in any of various different languages).

However, analogy aside (though the analogy is important as a reply to that lobbyist), what might be one of the main reasons to avoid software patents is that they stifle. They grant a monopoly on information ideas. This stifles because software is so light (it's information: "zero" costs in energy, time, money, etc, to manufacture and distribute) that the monopoly creates a huge opportunity cost because of the many many people that otherwise could recreate that and collaborate with the building blocks. This is the main reason we don't give patents on literature, law, music, math, and any other form of information creation. It would stifle a huge number of potential participants because it's so cheap and easy for many innovators and smart people to participate.. if only they would be legally allowed.

As another important point. The inventiveness bar in the US patent system is so low ("non-obvious to a PHOSITA") that it virtually guarantees that you will be giving a monopoly on what perhaps many tens of thousands (if not millions) of other software developers would not even consider to be "non-obvious" because these people would lie clearly on the right side of the "skills" bell curve. And even if you were average skilled and did consider the invention to be non-obvious and maybe even somewhat difficult or even difficult, that is no reason to give one single person a monopoly on it since many many others like yourself will independently be able to come up with the same non-obvious inventions over at most a few years. So we have a recipe guaranteed to stifle a huge amount if in fact these (US) patents were being enforced as monopolies everywhere possible. They aren't yet being enforced this harshly, but the law would allow it and this itself has a chilling effect, never mind for the cases of for-profit firms being sued. [And as a tax, they create a huge tax to the flow of information.]

Patents will stifle researchers in other fields (like math, physics, biochemistry, engineering, etc) that rely on a computer as a powerful tool to help them advance the progress of their own intellectual fields.

Finally, it is not theory, but real practice that software works like math and many other disciplines where the community of people collaborate extensively. There have been written likely over 1 billions lines of publicly accessible source code. Great and top quality software is being created this way. In almost all cases of a new "invention" being created among this collaboration, patents are not sought, partly because of the huge overhead this would entail with so much activity going on (and never mind the costs to people who can afford a PC but not 100 patents or more yearly to cover the code they write). Patents are broad and reveal little. Source code reveals all you need and is being "given away" for free my thousands of people daily. Clearly, this stuff does not require a monopoly to attract VC funding or anything like that.

It is a goal of this comment to inspire others to come up with better analogies/arguments or to otherwise reuse whatever they find here useful.

Cargo cult anyone?

or at least a lesson on correlation and causation.

I think he's spotted two things:
- the US has software patents
- the US has a large software industry

and unfortunately got the causation entirely the wrong way around. Patents didn't cause large industry as software companies were around long before software patents were permitted in the US. Instead large industry caused patents to be granted through lobbying.

"The Review should have correctly addressed the failing at the UKIPO to modernise and get up to date, a failing that stiﬂes UK growth. Instead it suggests in 2.18 that there is a requirement for ‘ﬁrm economic evidence’ before any further changes to the unusual UKIPO policy on software is made. An economic effect is not a requirement for a patent application to be considered. Nevertheless, and most ironically, the Prime Minister promoted the need for the Review by referring to economic evidence of US software industry success which he said cannot occur in the UK because of differences in our IP laws. In fact, the main difference is with the US and UK patent systems which rewards US companies in the US but the UKIPO does not reward any UK software industry for its inventions. As a result, the US is the source of most large software organisations who the UK has to turn to and spend large sums of monies on as there is no real alternative. Britain meantime no longer has any major software industry players which is ﬁrm evidence that the UKIPO policy is highly damaging to Britain’s software businesses."

I often liken the software patent situation to the cold war since it's a kind of terror balance where the big parties are stuck, the small parties suffer and the only real winners are the arms dealers (law firms in this case). What SMEIA is saying is essentially that the only way for the UK to get better off is by joining and intensifying the arms race.

Btw. for an organization founded in september 2009 I think one would expect to see more than 3 posts on their member forum. I find it very hard to believe that small tech firms would support this (unless they have been seriously misled).

Re:

Re:

There are alternatives to "US software". It's called open source software and is international in nature. Over 90% of the top 500 supercomputers use it over alternatives like Windows. Google and many other web firms built their businesses on it. The new android platform leverages it extensively. Even two-timing very proprietary Apple leverages large chunks of it within their core software.

Also -- and very importantly -- it's essentially all I use, and I have been getting along fine all of these years. :-)

The UK is tied down quite a bit to Microsoft software, but the reason you "need" Microsoft when you use Microsoft or when you use any other proprietary software has to do with lockin that comes from trade secrets, the complexity, and the fluid nature (easily updated by the vendor firm in real-time) of such software and is a phenomenon that exists independent of patents. Microsoft wrote most of its core software without relying on patents, with Bill Gates famously stating in the 1990s and recounted here http://www.nytimes.com/2007/06/09/opinion/09lee.html

“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”

Of course, as other Microsoft internal memos since then and opened up in court lawsuits have revealed, Microsoft moved over to become perhaps the largest creator of pure software patents on a yearly basis as a way to in fact address their competition. See, now they are huge and software patents offer a way to stifle and defund threatening competition. That is the purpose of software patents. To prop up large organizations afraid of upstarts. [And, yes, Microsoft has been among the most shameless, arrogant, and anti-competitive software firms of the past three decades.]

Bunch of Lawyers

It looks like a bunch of British lawyers have noticed how well their opposite numbers in the USA are doing, so they are aiming to get on the gravy train. Does anybody know who this "SME Innovation Alliance" really is?

Patent enforcement

I have to wonder about the descrepancy between the different patent systems though. With the US wanting to enforce their patents on anyone, what would happen if its a company that are not allowed to patent software in their respective country but are getting sued by some chancer that patented it in the US? Now the company could patent in the US, but if you are a small business and you actually just service your local community and maybe the odd US visitor, what do you do? Patenting in the US can be very expensive if you start converting it from certain currencies. So you either take the risk or just pay. And with the US just shutting down domains and wanting to extradite people even though their home country says its legal does not leave one with a warm fuzzy feeling. After all some chancer with pockets of money could wipe out a small business with no recourse for that small business.